292.21(1)(d)3.
3. The lender, within its ability to do so, permits reasonable access to the personal property or fixtures to the department or the borrower or others acting on the borrower's behalf.
292.21(1)(d)4.
4. The lender does not engage in the operation of a business at the location of the personal property or fixtures, completion of work in progress or other actions associated with conducting the conclusion of the borrower's business except for actions that are undertaken to protect the property and are approved by the department in writing.
292.21(1)(e)
(e)
Rules; approvals. The department may promulgate rules further specifying the activities to be carried out by a lender for the environmental assessment required under
par. (c) 1. d. The department may not, by rule, require a lender to undertake sampling and analysis beyond that required under
par. (c) 2. h. and
i. in order to determine the degree and extent of contamination or require a lender to perform any remedial action to clean any discharge. The department may approve, by rule or in a site-specific approval, the use of reliable methods of identification other than the collection and laboratory analysis of samples.
292.21(2)
(2) Responsibility of representatives. 292.21(2)(a)(a) A representative who acquires title to, or possession or control of, real or personal property is not personally liable under this chapter for a discharge of a hazardous substance if all of the following circumstances apply:
292.21(2)(a)1.
1. The representative acquires title to, or possession or control of, the real or personal property in the capacity of a representative.
292.21(2)(a)2.
2. The representative, through action or inaction, does not knowingly, willfully or recklessly cause a discharge of a hazardous substance.
292.21(2)(a)3.
3. The representative does not physically cause a discharge of a hazardous substance.
292.21(2)(a)4.
4. The representative does not have a beneficial interest in a trust, estate or similar entity that owns, possesses or controls the real or personal property.
292.21(2)(a)5.
5. The representative does not knowingly, willfully or recklessly fail to notify the department in accordance with
s. 292.11 (2) of the discharge of a hazardous substance.
292.21(2)(b)1.
1. A representative that knew or should have known that the trust, estate or similar entity for which the representative is acting as a representative was established, or that assets were transferred to the trust, estate or similar entity, in order to avoid responsibility for a discharge of a hazardous substance.
292.21(2)(b)2.
2. A representative that fails to act in good faith to cause the trust, estate or similar entity for which the representative is acting as a representative to take the actions described in
s. 292.11 (3) or to reimburse the department under
s. 292.11 (7) (b). It is not a lack of good faith for a representative to resign as representative, to seek a court order directing the representative to act or refrain from acting or to challenge the department by any legal means.
292.21(2)(c)
(c) This subsection does not limit the responsibility of any trust, estate or similar entity to take the actions required under
s. 292.11 (2),
(3),
(4) or
(7) (c) or any other provision of this chapter or to reimburse the department under
s. 292.11 (7) (b).
292.21 Cross-reference
Cross Reference: See also ch.
NR 749, Wis. adm. code.
292.24
292.24
Responsibility of local governmental units; hazardous waste. 292.24(2)
(2) Exemption from liability. Except as provided in
sub. (3), a local governmental unit is exempt from
ss. 291.25 (1) to
(5),
291.29 and
291.37, and rules promulgated under those provisions, with respect to the existence of a hazardous waste discharge on property acquired in a way or for a purpose described in
s. 292.11 (9) (e) 1m., if all of the following occur at any time before or after the date of acquisition:
292.24(2)(a)
(a) An environmental investigation of the property is conducted that is approved by the department and that identifies any hazardous waste discharges that occurred on the property.
292.24(2)(b)
(b) The hazardous waste discharges identified by the investigation under
par. (a) are cleaned up by restoring the environment to the extent practicable with respect to the discharges and minimizing the harmful effects from the discharges in accordance with rules promulgated by the department and any contract entered into under those rules.
292.24(2)(c)
(c) The local governmental unit obtains an approval from the department stating that the property has been satisfactorily restored to the extent practicable with respect to the hazardous waste discharges and that the harmful effects from the discharges have been minimized.
292.24(2)(d)
(d) The local governmental unit maintains and monitors the property as required under rules promulgated by the department and any contract entered into under those rules.
292.24(2)(e)
(e) The local governmental unit does not engage in activities that are inconsistent with the maintenance of the property.
292.24(2)(f)
(f) The local governmental unit has not obtained the certification under
par. (c) by fraud or misrepresentation, by the knowing failure to disclose material information or under circumstances in which the local governmental unit knew or should have known about more discharges of hazardous waste than were revealed by the investigation conducted under
par. (a).
292.24(2)(g)
(g) The local governmental unit did not cause the discharge of any hazardous waste identified on the property.
292.24(3)
(3) Applicability. Subsection (2) does not apply to any of the following:
292.24(3)(a)
(a) A hazardous waste treatment, storage or disposal facility that first begins operation after the date on which the local governmental unit acquired the property.
292.24(3)(b)
(b) A licensed hazardous waste treatment, storage or disposal facility operated on the property before the date on which the local governmental unit acquired the property and that is operated after the date on which the local governmental unit acquired the property.
292.24(3)(c)
(c) Any hazardous waste disposal facility that has been issued a license under s.
144.441 (2), 1995 stats., or
s. 289.41 (1m), or rules promulgated under those sections, for a period of long-term care following closure of the facility.
292.24 History
History: 1999 a. 9.
292.25
292.25
Report on impact of exemptions from liability. 292.25(1)(1) The department shall biennially determine all of the following:
292.25(1)(a)
(a) The number of sites for which a person is seeking to qualify for an exemption under
s. 292.15.
292.25(1)(b)
(b) The number of sites for which a certificate of completion was issued under
s. 292.15.
292.25(1)(c)
(c) The number of sites for which a certificate of completion was issued under
s. 292.15 at which it is discovered that the cleanup failed or at which additional hazardous substances are found after the certificate of completion was issued.
292.25(1)(d)
(d) The number of sites described in
par. (b) at which the department has determined that it is necessary to conduct remedial action using moneys from the environmental fund and the estimated costs of performing that remedial action.
292.25(1)(e)
(e) The number of sites for which a claim was made against an insurance policy required under
s. 292.15.
292.25(2)
(2) No later than September 15 of each even-numbered year, the department shall submit a report describing its determinations under
sub. (1) to the legislature under
s. 13.172 (2), to the governor and to the department of administration.
292.25(3)
(3) The department may require a person to provide information necessary for the department to make the determinations under
sub. (1).
292.25 History
History: 1999 a. 9.
292.255
292.255
Report on brownfield efforts. The department of natural resources, the department of administration and the department of commerce shall submit a report evaluating the effectiveness of this state's efforts to remedy the contamination of, and to redevelop, brownfields, as defined in
s. 560.60 (1v).
292.255 History
History: 1999 a. 9,
84.
292.26
292.26
Civil immunity; local governmental units. 292.26(2)
(2) Except as provided in
sub. (3), a local governmental unit is immune from civil liability related to the discharge of a hazardous substance on or from property formerly owned or controlled by the local governmental unit if the property is no longer owned by the local governmental unit at the time that the discharge is discovered and if any of the following applies:
292.26(2)(a)
(a) The local governmental unit acquired the property through tax delinquency proceedings or as the result of an order by a bankruptcy court.
292.26(2)(b)
(b) The local governmental unit acquired the property from a local governmental unit that acquired the property under a method described in
par. (a).
292.26(2)(c)
(c) The local governmental unit acquired the property through condemnation or other proceeding under
ch. 32.
292.26(2)(d)
(d) The local governmental unit acquired the property for the purpose of slum clearance or blight elimination.
292.26(3)
(3) Subsection (2) does not apply with respect to a discharge of a hazardous substance caused by an activity conducted by the local governmental unit while the local governmental unit owned or controlled the property.
292.26 History
History: 1997 a. 27.
292.31
292.31
Environmental repair. 292.31(1)
(1)
Inventory; analysis; hazard ranking. 292.31(1)(a)1.1. The department shall compile and maintain an inventory of sites or facilities which may cause or threaten to cause environmental pollution. In compiling the inventory, the department shall collect all relevant information about a site or facility which is or may become available. No later than January 1, 1992, the department shall publish the initial inventory of sites or facilities. Every 4 years, beginning no later than January 1, 1996, the department shall publish a revised inventory of sites or facilities.
292.31(1)(a)2.
2. The department shall publish the initial inventory and each revised inventory as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The notice shall include a statement that the list is not subject to judicial review.
292.31(1)(a)3.
3. The decision of the department to include a site or facility on the inventory or exclude a site or facility from the inventory is not subject to judicial review.
292.31(1)(b)1.1. The department may take direct action under
subd. 2. or
3. or may enter into a contract with any person to take the action. The department may take action under
subd. 2. or
3. regardless of whether a site or facility is included on the inventory under
par. (a) or the hazard ranking list under
par. (c).
292.31(1)(b)2.
2. The department may conduct an investigation, analysis and monitoring of a site or facility and areas surrounding the site or facility to determine the existence and extent of actual or potential environmental pollution from the site or facility including, but not limited to, monitoring by means of installing test wells or by testing water supplies. The department may conduct an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility. If the department conducts an investigation to identify persons who are potentially responsible for actual or potential environmental pollution from a site or facility, the department shall make a reasonable effort to identify as many persons as possible responsible for the environmental pollution.
292.31(1)(b)3.
3. The department may determine whether a site or facility presents a substantial danger to public health or welfare or the environment and evaluate the magnitude of the danger.
292.31(1)(c)1.1. The department shall promulgate by rule criteria for determining the ranking of sites and facilities which are included in the inventory under
par. (a), based on the degree to which sites or facilities present a substantial danger to public health or welfare or the environment and the potential urgency of taking remedial action. To the extent applicable, the criteria shall be based on the population at risk, the potential for contamination of drinking water supplies, the potential for other direct human contact, the potential for destruction of sensitive ecosystems, the hazard potential of the hazardous substances which may be released and other appropriate factors. The department is not required to use hazard ranking criteria promulgated by the federal environmental protection agency under
42 USC 9601, et seq.
292.31(1)(c)2.
2. From time to time, the department shall issue documents, consistent with the criteria in
subd. 1., which list the hazard ranking of sites and facilities which are included in the inventory under
par. (a). The hazard ranking list shall include in a single category those sites or facilities determined by the department to present a substantial danger to public health or welfare or the environment. The department may include subcategories in the hazard ranking list which group together, without assigning a specific degree of risk and without establishing an individual hazard ranking, sites or facilities which do not present a substantial danger to public health or welfare or the environment. No later than January 1, 1994, the department shall complete the hazard ranking of all sites or facilities which are included in the initial inventory compiled under
par. (a). Notwithstanding
s. 227.01 (13) or
227.10 (1), documents issued under this subdivision are not rules.
292.31(1)(c)3.
3. The department shall publish the hazard ranking list and any amendments to the hazard ranking list as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The notice shall invite the submission of written comments within the 30-day period after the notice is published. The notice shall include a description of the procedure for requesting a public hearing and a statement that the list is not subject to judicial review.
292.31(1)(c)4.
4. Within 30 days after the hazard ranking list or any amendments to the hazard ranking list are published, any person may submit to the department a request for a public hearing. If a hearing is requested within the 30-day period, the department shall publish a notice of the hearing, at least 10 days prior to the hearing, as a class 1 notice under
ch. 985 in the official state newspaper under
s. 985.04 or, if none exists, in a major newspaper with statewide circulation. The department shall conduct the public hearing within 90 days after the hearing is requested. The department may publish a notice and conduct a public hearing if a request is received after the 30-day period. Notwithstanding
s. 227.42, the hearing under this paragraph shall not be conducted as a contested case.
292.31(1)(c)5.
5. The decision of the department concerning the hazard ranking assigned to a site or facility is not subject to judicial review.
292.31(1)(d)
(d)
Access to information. Upon the request of any officer, employee or authorized representative of the department, any person who generated, transported, treated, stored or disposed of solid or hazardous waste which may have been disposed of at a site or facility under investigation by the department shall provide the officer, employee or authorized representative access to any records or documents in that person's custody, possession or control which relate to:
292.31(1)(d)1.
1. The type and quantity of waste generated, transported, treated or stored which was disposed of at the site or facility and the dates of these activities.
292.31(1)(d)2.
2. The identity of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.
292.31(1)(d)3.
3. The identity of subsidiary or parent corporations, as defined in 292.31 (8) (a) 3., of persons who generated, transported, treated or stored waste which was disposed of at the site or facility.
292.31(2)
(2) Environmental response plan. The department shall promulgate by rule a waste facility environmental response plan. The plan shall contain the following provisions:
292.31(2)(a)
(a) Methods for preparing the inventory and conducting the analysis under
sub. (1).
292.31(2)(c)
(c) Methods and criteria for determining the appropriate extent of remedial action under
sub. (3).
292.31(2)(d)
(d) Means of ensuring that the costs of remedial action are appropriate in relation to the associated benefits over the period of potential human exposure to substances released by the site or facility.
292.31(2)(e)
(e) Appropriate roles and responsibilities under this section for federal, state and local governments and for interstate and nongovernmental entities.
292.31(3)(b)1.1. The department may take direct action under
subds. 2. to
9. or may enter into a contract with any person to take the action.
292.31(3)(b)2.
2. The department may take action to avert potential environmental pollution from the site or facility.
292.31(3)(b)3.
3. The department may repair the site or facility or isolate the waste.
292.31(3)(b)4.
4. The department may abate, terminate, remove and remedy the effect of environmental pollution from the site or facility.
292.31(3)(b)5.
5. The department may restore the environment to the extent practicable.
292.31(3)(b)6.
6. The department may establish a program of long-term care, as necessary, for a site or facility which is repaired or isolated.
292.31(3)(b)7.
7. The department may provide temporary or permanent replacements for private water supplies damaged by a site or facility. In this subdivision, "private water supply" means a well which is used as a source of water for humans, livestock, as defined in
s. 95.80 (1) (b), or poultry.
292.31(3)(b)8.
8. The department may assess the potential health effects of the occurrence, not to exceed $10,000 per occurrence.
